VICTORIAN CIVIL AND ADMINISTRATIVE TRIBUNAL
PLANNING AND ENVIRONMENT DIVISION
planning and environment LIST	vcat reference No. P1887/2019
Permit Application no. P/2019/6051	
CATCHWORDS	
Section 77 of the Planning and Environment Act 1987. Knox Planning Scheme. General Residential Zone. Tree Protection Overlay. Two dwellings. Neighbourhood and landscape character. Vehicle access.	

APPLICANT	Luke Fulford	
responsible authority	Knox City Council 	
SUBJECT LAND	21 Carrara Road, Rowville	
WHERE HELD	Melbourne	
BEFORE	Vicki Davies, Member	
HEARING TYPE	Hearing	
DATE OF HEARING	4 March 2020	
DATE OF ORDER	27 March 2020	
CITATION	Fulford v Knox CC [2020] VCAT 402    	
Order
Amend permit application  
1	Pursuant to clause 64 of Schedule 1 of the Victorian Civil and Administrative Tribunal Act 1998, the permit application is amended by substituting for the permit application plans, the following plans filed with the Tribunal:
•	Prepared by:		Atelier North Studio
•	Drawing numbers:	TP01 to TP08 (inclusive)  
•	Dated:			15.01.2020
No permit granted
2	In application P1887/2019 the decision of the responsible authority is affirmed.
3	In planning permit application P/2019/6051 no permit is granted.

Vicki Davies 
Member			
Appearances
For applicant 	Mr Stephen O’Brien, planning consultant, Universal Planning 	
For responsible authority 	Mr Jack Richardson, town planner, Knox City Council  	

Information
Description of proposal	Construction of a double storey dwelling, with a single storey dwelling behind it, and removal of vegetation   	
Nature of proceeding	Application under section 77 of the Planning and Environment Act 1987 – to review the refusal to grant a permit 	
Planning scheme	Knox Planning Scheme 	
Zone and overlays	General Residential Zone (GRZ), Schedule 5 
Vegetation Protection Overlay (VPO), Schedule 4 	
Permit requirements	Clause 32.08-6: Construct two or more dwellings on a lot in a GRZ
Clause 42.02-2: Remove, destroy or lop any vegetation specified in the relevant schedule to the VPO  	
Relevant scheme policies and provisions	Clauses 12, 15, 16, 18, 21.03, 21.05, 21.06, 22.07, 32.08, 42.02, 52.06, 55, 65 and 71.02	
Land description	The review site is located on the south side of Carrara Road, Rowville. It has a frontage of 16.76m and a depth of 43.28m, yielding a site area of 725.5m2. It is developed with a single storey dwelling, commencing 10.6m from the frontage, and an outbuilding on the eastern side. 
The land has a fall of approximately 1m from the frontage to the rear and is quite heavily vegetated, including canopy trees within the front setback and the rear garden. 
This is an established residential area, to the west of Stud Road and to the north of the Monash Freeway. It predominantly comprises single and double storey detached dwellings.  There are single storey detached dwellings on the abutting properties to the east, west and south. 	
Tribunal inspection	18 March 2020, unaccompanied by the parties    	

Reasons
WHAT IS THIS PROCEEDING ABOUT?
1	Luke Fulford (applicant) seeks a review of the decision by the Knox City Council (Council) to refuse to grant a permit for the construction of two dwellings (one double storey and one single storey) and removal of the vegetation at 21 Carrara Road, Rowville.
2	The Council’s grounds of refusal relate to failure to satisfy relevant State and local planning policies with respect to housing, built form, neighbourhood character and landscaping; the layout of the proposed development being inconsistent with the purpose and decision guidelines related to the zoning of the land; failure to comply with specified objectives and standards of clause 52.06 and clause 55 of the Knox Planning Scheme (planning scheme); and the loss of protected vegetation not being appropriately balanced by new vegetation.
3	Since the lodgement of the application for review, the applicant has circulated amended plans that I allowed to be substituted. The principal amendment is the inclusion of a single garage and an adjacent car space for Unit 1, rather than a double garage. 
4	The Council remains opposed to the proposal. Its modified grounds of refusal include failure to comply with Design standard 2 (Car parking spaces) in clause 52.06-9.
5	I must decide whether a permit should be granted and, if a permit is granted, what conditions it should contain.
6	Various aspects of the proposal are not controversial. The development of two dwellings is consistent with State and local strategies in the planning scheme that promote urban consolidation and a diversity of housing types. The review site is well-located for some form of medium density development, being close to various open space reserves, community services and facilities and the Monash Freeway. Unit 2 is single storey and Unit 1 has one of its four bedrooms on the ground, making the dwellings suitable for occupation by those with limited mobility. The 7.7m maximum height (of Unit 1) is below the allowed 9m maximum height. The dwellings adopt a conventional building design, incorporating pitched roofs and materials found in the area. By providing a single (rather than double) garage for Unit 1, the amended plans satisfy the varied clause 55 site coverage requirement (of 40%). There is also compliance with the mandatory ‘garden area’ requirement (of 35%) for a lot with an area greater than 650m². The design suitably limits views into neighbouring properties and the buildings would not significantly overshadow existing secluded private open spaces. 
7	In the light of the submissions and my inspection, I consider that the key issues to be determined are:
•	Is the proposal respectful of neighbourhood character, including by retaining significant trees and providing new landscaping? 
•	Is there an acceptable arrangement for the parking and movement of vehicles?
•	Do the dwellings have adequate private open spaces?   
8	My principal findings are that the proposed development is too intensive. The extent of built form, particularly at the rear of the review site, is contrary to the preferred ‘bush suburban’ character. The front setback of Unit 1 is also inadequate. The overdevelopment of the review site is also reflected in difficulties in manoeuvres from at least one of the car spaces and the inadequate size and location of private open spaces. 
9	Accordingly, I have decided to affirm the Council’s decision. No permit is granted. My reasons follow. 
PROPOSAL
10	Key features of the proposal, as shown on the amended plans, include:
•	Construction of a double storey dwelling (Unit 1) on the front section of the land. The dwelling would have a ground floor front setback of 5m (with a porch encroaching) and a first floor front setback of 6m. It would have four bedrooms, including one at the ground level, and 81.8m² of secluded private open space. Its maximum height would be approximately 7.7m. 
•	A single storey dwelling (Unit 2) on the rear section of the land, set back 2.33m from the rear boundary and 1.74m from the west boundary. Its garage would be offset 200mm from the east boundary. It would have three bedrooms and around 96m² of secluded private open space.   
•	Dwellings with a contemporary design, with a combination of pitched and gabled roof forms and the use of render and bricks for walls, timber for the garage doors and metal roofs.
•	Utilisation of the existing crossover and a shared accessway within the eastern side boundary giving access to a single garage and an open car space for Unit 1 and a double garage for Unit 2.
•	Site coverage of 37.9%, permeability of 41% and ‘garden area’ of 35.17%. 
•	The removal of all but one of the 16 trees on the land. 
IS THe proposal respectful of NEIGHBOURHOOD Character?
What does the planning scheme say?
11	The review site is within the GRZ, the purpose of which includes ‘To encourage development that respects the neighbourhood character of the area’. More specifically, the review site is in an area covered by Schedule 5 to the GRZ (GRZ5), which relates to ‘Bush Suburban Areas (Outside the Dandenong Foothills)’.
12	Relevant to the proposal, GRZ5 varies ResCode Standards B6 (Minimum street setback), B8 (Site coverage), B9 (Permeability), B28 (Private open space) and B32 (Front fence height). It also provides that a building must not exceed a height of 9m. There are no additional decision guidelines.
13	The objective at clause 15.01-5S (Neighbourhood character) includes ‘To recognise, support and protect neighbourhood character’.
14	At clause 55.02-1, the neighbourhood character objectives are to ensure the design ‘respects the existing neighbourhood character or contributes to the preferred neighbourhood character’ and to ensure the development ‘responds to the features of the site and the surrounding neighbourhood’. 
15	Clause 21.03 refers to the importance of Knox’s natural environment. Specifically, it refers to the prevention of the loss of vegetation and ‘enhancing the green and leafy image of Knox’ as central to the overall vision. Canopy trees are identified as ‘an integral component in retaining Knox’s natural environments and maintaining its landscape character’.  
16	The planning scheme seeks to direct housing development and growth through clause 21.06 (Housing), which implements the Knox Housing Strategy 2015 (Housing Strategy). The Housing Strategy identifies four types of residential areas, with different levels of anticipated change. The areas are Bush Suburban, Knox Neighbourhood, Local Living Areas and Activity Areas. The review site is in a Bush Suburban area.
17	The strategies in clause 21.06-1 (Scaled approach to residential development) include ‘Direct growth away from Bush Suburban and Knox Neighbourhood areas’. The strategies in clause 21.06-2 (Diversity of housing choice) include ‘Support a diverse range of housing, including smaller dwellings’ and ‘Avoid the development of villa units, townhouses and apartments in Bush Suburban areas’. Clause 21.06-3 (Design and character) states:
The strong ‘green and leafy’ landscape character is the unifying element of the neighbourhood character of Knox. The scaled approach to residential developments adopted in each of the four residential areas will contribute to this “Knox” character and develop a distinct neighbourhood character. 
18	The desired future character or ‘vision’ for Bush Suburban areas is:
Bush Suburban Areas include two distinct areas: the Dandenong Foothills and the Sites of Biological Significance. These areas have distinctive and significant biological values. Limited and low scale residential development is anticipated in these areas in order to protect the environmental and biological qualities that make these areas distinct. 
19	The review site is not in the Dandenong Foothills. Rather, it is included in the ‘Sites of Biological Significance’.
20	The policy at clause 22.07 (Development in Residential Areas and Neighbourhood Character) applies to all types of residential areas and:  
•	Provides design guidance to facilitate development that contributes to the strong ‘green and leafy’ character of Knox and preferred future character of residential areas.
21	The objectives of the policy include:
•	To facilitate development that is responsive to the unifying ‘green and leafy’ character of Knox.
•	To recognise that the environment significance of the Dandenong Foothills and Sites of Biological Significance (Bush Suburban Areas) outweighs the need for urban consolidation within these areas.
•	To facilitate the design and scale of development makes [sic] a positive contribution to the area’s built form. 
22	At clause 22.07-3, the Preferred Future Character for Bush Suburban areas is stated as:
Bush Suburban areas will:
•	Contribute to the protection and enhancement of Knox’s distinctive environmental and biological values.
•	Continue to be low-scale neighbourhoods where significant indigenous and native vegetation is retained and complemented. 
•	Require built form that is subservient to the area’s landscape dominant character.
23	Under the heading ‘Preferred Dwelling Typologies’ is the following:
•	In Bush Suburban areas it is policy to support detached dwellings and dual occupancies. 
24	It is policy that various ‘Design Objectives’ and ‘Design Guidelines’ are addressed when considering any development application. The latter are:
•	Design buildings to be nestled and tucked into the landscape.
•	Design buildings to accommodate landscaping including canopy trees in front and rear gardens.
•	Retain existing canopy trees and understory planting, wherever possible.
•	Plant indigenous and native canopy trees in accordance with the requirements of the applicable zone schedule.
•	Locate carports and garages behind the line of the dwelling or in the rear yard.
•	Provide single crossovers for driveways.
•	Minimise the amount of paving in front yards and driveways.
•	Design new buildings to incorporate pitched, hipped or gabled roof forms.
•	Significantly setback [sic] first floor levels from the ground floor level.
•	Provide no, low or transparent front fencing. 
25	Reflecting the location in a Bush Suburban area, the review site is covered by the VPO. The purpose of the VPO includes ‘To protect areas of significant vegetation’ and ‘To ensure that development minimises loss of vegetation’. A permit is required to remove, destroy or lop any vegetation specified in a schedule to the overlay. The relevant schedule is Schedule 4 (VPO4), which is named ‘Canopy Tree Protection’.   VPO4 includes a ‘Statement of nature and significance of vegetation to be protected’ and ‘Vegetation protection objective to be achieved’. The latter includes:
To protect and retain the continuity of tree cover, with particular emphasis on indigenous species and large old native trees.
To retain the likely pre-European tree canopy species of the neighbourhood through selecting replacement trees consistent with the areas landscape and arboricultural constraints.
Assessment
Streetscape
26	In terms of the presentation to the street, there are aspects of the design that are consistent with the objectives and decision guidelines for Bush Suburban areas. For instance, there is a single crossover; the garages are behind the line of the front dwelling and at the rear of the land; and there is a low front fence (across only half of the frontage). 
27	The Council has taken no issue with the bulk or massing of Unit 1, accepting that the first floor is suitably recessed. One detached dwelling would be presented to the street, similar to other new dwellings in the street. However, the Council does not think that the front setback of Unit 1 is acceptable.
28	The ground floor front setback of Unit 1 is 5m. Mr Richardson submitted that the setback required by ResCode Standard B6 is 8.9m, being the average of the setbacks of the front walls of the two adjacent buildings (12m to the west and 5.8m to the east). Mr Richardson also submitted the average setback of the buildings in the immediate area is 8.01m and the lowest is 5.8m.
29	On the other hand, Mr O’Brien submitted that in considering Standard B6 the reference point to the west should be the garage at 23 Carrara Road, which has a setback of 6.7m, rather than the wall of the dwelling. He suggested that there is a limited perception of the dwelling setback given the solid, high front fence. Mr O’Brien calculated that relying on the setback of the garage to the west would result in an average setback of adjacent buildings of 6.25m. Mr O’Brien acknowledged that the proposed 5m setback does not achieve that requirement, but submitted that it is acceptable given the inconsistency of front setbacks in the street, including some dwellings that are angled to the street alignment. He also pointed to the small width of Unit 1 relative to the frontage, with the building width being approximately 45.5% of the width of the land. 
30	Although GRZ varies Standard B6 for sites on a corner, the ordinary provisions of the Standard continue to apply to the review site. The Standard clearly refers to the ‘front walls of the existing buildings’ as the reference point, rather than outbuildings. I agree with Mr Robertson that in this instance the Standard calls for a front setback of 8.9m.
31	I agree with Mr O’Brien that there is not a pattern of consistent setbacks along this section of Carrara Street. However, that does not justify such a large discrepancy between the Standard B6 requirement of 8.9m and the proposed setback of 5m. That is particularly so as Unit 1 is a two-storey building that would sit between low-slung neighbours. Notably, the 6m first floor setback of Unit 1 also falls well short of the required setback. 
32	I appreciate that the retention of a large tree in the north-west corner of the review site would offer some continuity in the presentation to the street. However, the proposed 5m setback involves a significant loss of front garden, as the existing dwelling has a setback of 10.6m. The reduced setback also means that the space for new landscaping is substantially less than if there was an 8.9m setback. 
33	Ultimately, I think that the siting of Unit 1 is a critical flaw of the proposal. I disagree with Mr O’Brien’s submission that the non-compliance with Standard B6 does not transform the development from being unacceptable to being overwhelming and dominant.
Extent of development
34	The Tribunal has consistently held that neighbourhood character is not just about the streetscape. It has been observed that the broader concept of neighbourhood character also includes such elements as the siting and scale of buildings, the space between them, the area’s landscape character, the way buildings integrate with open space areas and the nature and ‘feel’ of an area, including that experienced in the neighbouring rear yards.
35	In terms of that broader concept, Mr Richardson was particularly critical of the limited separation between the buildings, the excessive hard surface areas and the inadequate setbacks for substantial plantings. He highlighted the planning scheme provisions that direct growth away from Bush Suburban areas, which are areas of the municipality where policy calls for the recognition that ‘environmental significance … outweighs the need for urban consolidation’.
36	I appreciate that a dual occupancy development is consistent with the statement of preferred dwelling types for Bush Suburban areas. However, that does not mean that any two-dwelling development will be necessarily acceptable. Particular consideration needs to be given to the site context and the decision guidelines at clause 22.07-3. 
37	In the light of my inspection, I acknowledge that there is not a consistent ‘bush suburban’ character throughout this area of Rowville. However, the immediate environs of the review site does have a distinct feel, arising from the topography and mature street trees, but also due to the nature of vegetation on properties. In particular, many of the properties to the south (with dwellings facing Seebeck Road) have very substantial trees within their rear gardens. Trees within the rear of the review site now add to that spine of vegetation. 
38	The proposal does not involve continuous development down the review site. There is a separation of at least 5m between the two buildings. However, I agree with Mr Richardson that the extent of paving and limited boundary setbacks results in the proposal being inconsistent with the policy for Bush Suburban areas. The extent of development would not allow for new plantings that would allow ‘buildings be nestled and tucked into the landscape’. Of particular concern is that Unit 2 is set back only 1.74m from the western boundary and 2.33m from the rear boundary, with projecting eaves. No substantial landscaping is proposed in those setbacks. As illustrated on the roof plan (Drawing No. TP04), Unit 2 would essentially fill in the whole of the rear of the review site, apart from a cut-out in the south-east corner. Contrary to the policy for Bush Suburban areas, the design does not satisfactorily ‘accommodate landscaping including canopy trees in … rear gardens’.
Tree removal and new landscaping
39	There are 16 trees on the review site. According to the applicant’s Arborist Report, all but one of the trees have low retention value and could be removed. The exception is a Narrow-leafed Black Peppermint (Eucalyptus nicholii) in the north-west corner, which is identified in the Arborist Report as Tree #2. Its removal would require a permit under VPO4, but it is to be retained.  
40	In response to referral of the application, the Council’s Arborist was not concerned about the removal of various trees which are considered to be environmental weeds. They also supported the removal of Tree #9 and Tree #15, which also require permission for removal under VPO4.
41	The Council’s Arborist highlighted that Unit 1 and its associated paving encroaches 12% into the Tree Protection Zone of Tree #2 and that under the relevant Australian Standard, that is considered a ‘major encroachment’ which would affect the long-term viability of the tree. The Arborist thought the encroachment should be reduced to a ‘minor encroachment’ (10% or less). Mr O’Brien submitted that there could be less paving near Tree #2. Had I determined to issue a permit, I would have required amended plans showing the encroachment of Unit 1 and associated paving to 10% or less. 
42	One of the Council’s fundamental concerns is that the layout does not include sufficient space for the planting of trees to replace the large loss of tree canopy.   
43	The requirement of ResCode Standard B13, as varied in GRZ5, is for a minimum of one canopy tree per 150m² of the site area, including:
•	a minimum of one canopy tree within each area of secluded private open space; and 
•	a minimum of one canopy tree within the front setback per 5 metres of width of the site (excluding the width of one driveway).
44	The varied requirement includes that each tree should be surrounded by 20m² of permeable surface with a minimum radius of 3m, noting that up to 50% of that surface may be shared with another tree.
45	Mr Richardson acknowledged that the proposal satisfies the requirement for two trees in the front setback, as it involves the retention of Tree #2 and a new tree in front of Unit 1. However, reflecting the referral comments of the Council’s Landscape Officer, Mr Richardson submitted that the width of the front setback is insufficient, needing to be at least 6m wide to allow sufficient room for the planting of new canopy trees. Mr Richardson advised that the Landscape Officer had the following further comments:
•	It is necessary to redirect the front path in order to reduce the hard surface and increase space for plantings.
•	The proposed landscaping areas throughout the site are ‘tight and narrow, negating any meaningful new landscaping to be provided for the long-term’.
•	The proposed canopy trees are located approximately 2m-2.5m from buildings, which is too close and likely to cause damage to the footings of the building as trees mature.
•	‘The driveway bumpout garden bed should be around 1.5 metres wide to provide realistic space for a small canopy tree to be planted’.
46	The comments of the Council’s Landscape Officer cannot be given the same weight as an expert witness, subject to cross-examination, but I agree with their thrust. I have already commented on the landscape implications for the reduced front setback. While redirection of the front path could be easily achieved, it is unlikely the ‘bumpout garden bed’ could be widened given the required vehicle movements (as discussed later in these reasons). 
47	A detailed landscape plan was prepared for the original application plans. It would apply to the revised layout on the amended plans. The plan shows two canopy trees within the front setback, a canopy tree within the secluded private open space of Unit 1 and a canopy tree in each of the two secluded private open spaces of Unit 2. That accords with the varied Standard B13, in terms of the overall rate of canopy trees per 150m² of site area (which in this case is a total of four) and where they should be located. However, it is questionable whether the tree in the secluded private open space of Unit 1 can fairly be categorised as a canopy tree, being a ‘Weeping Red Bottlebrush’ with a mature height of only 4m. Furthermore, I agree with the Council’s Landscape Officer that the spaces for the trees are restricted. Ultimately, I am not convinced that there is space for landscaping that accords with the Bush Suburban character.
IS There an acceptable arrangement for the parking and movement of vehicles?
48	In response to referral of the application, the Council’s Traffic Engineering department advised that the western car space in the Unit 2 garage does not have sufficient space to allow a vehicle to turn around and exit the site in a forward direction, as required by Design standard 1 (Accessways) of clause 52.06-9. It was also noted that the single garage of Unit 1 has a width of 3m, which is less than the 3.5m width required by Design standard 2 (Car parking spaces). Furthermore, it was highlighted that the uncovered car space falls short of the required width by 0.1m (by being 2.5m-wide, instead of 2.6m-wide) and should not be hard against the garage and fence. 
49	Mr O’Brien acknowledged that the swept path for the western space in the Unit 2 garage is not shown on the plans. I gave leave for the applicant to provide that information after the hearing.   
50	Further information was provided by the applicant’s representative on 6 March 2020. The applicant had engaged ML Traffic Engineers to review the scenario. ML Traffic Engineers provided swept path diagrams relating to both car spaces in the Unit 2 garage. Their advice regarding the western space included the following:
Excluding the initial reversing manoeuvre (which does not involve the vehicle stopping and is therefore not considered to be one of the point turns), a set of 3-point turn adjustment manoeuvers will be required to achieve forward direction egress … Such manoeuvring requirement is considered to be satisfactory. It does not require onerous effort from the driver, and neither does it impose safety impacts on the driver or other users at the property.  
51	My order of 6 March 2020 clearly restricted further submissions to ‘A swept path analysis regarding the car space within the western side of the proposed garage of Unit 2’. Accordingly, I have had no regard to the comments regarding the eastern space by both ML Traffic Engineers and the Council’s Traffic Engineering department (in a response received on 13 March 2020). I note only that very different views were put forward regarding the acceptability of that space. 
52	Regarding the western space, the Council’s Traffic Engineering department commented that the vehicle ‘requires a corrective manoeuvre with less than 500mm rear clearance in order to forward exit’.
53	As is standard, the swept path analysis is based on a B85 vehicle. That is unlikely to be the car of choice for residents. A resident would also become familiar with the necessary manoeuvring required to exit the western space of the Unit 2 garage. Nevertheless, I do not think the required manoeuvring represents convenient access. The tightness of the arrangement is indicative of overdevelopment. Had I determined to grant a permit, I would have further interrogated the issue of the eastern car space. 
54	The south-facing window of the kitchen-meals area of Unit 1 is only 600m from the shared accessway, with a sill height of approximately 1m. That does not comply with ResCode Standard B15 (Parking location objectives), which requires a setback of at least 1.5m (reduced to 1m if there is an intervening fence or the window sill is at least 1.4m above the accessway). Mr O’Brien advised that the applicant agrees to the Council’s draft permit condition requiring the window to have ‘double width glass’. While that is not an alternative referred to in Standard B15, it is likely to mitigate noise from passing cars, that are only associated with one other dwelling.
DO THE DWELLINGS HAVE adequate private open spaces?
55	As varied by GRZ5, ResCode Standard B28 (Private open pace) requires 80m² of private open space, consisting of secluded private open spaces at the side or rear of the dwelling with a minimum area of 60m² and a minimum dimension of 5m with convenient access from a living room. The requirement is for considerably more private open space than the normal requirement, which is 40m² of private open space, including an area of 25m² to the side or rear of the dwelling with a minimum dimension of 3m.  
56	The private open space objective at clause 55.05-4 is ‘To provide adequate private open space for the reasonable recreation and service needs of residents’. Compliance with the varied Standard B28 would indicate that the objective is achieved, but in this case the varied Standard is not met in a number of respects. 
57	Specifically, Unit 1 has two areas of private open space. There is 40m² of secluded private open space to the side of the west side of the dwelling, accessed from the living room. It is separated by a 1.7m-high fence from a further area of 42m² of private open space in front of the dwelling. As that area is enclosed by 1.2m-high fencing along the frontage and along the pedestrian path to the entry, it is not secluded. 
58	The private open space for Unit 1 does not comply with the varied Standard B28. Mr O’Brien highlighted that only some of the space is in the front setback and both spaces have a northern orientation. I do not see those factors as justifying non-compliance with the Standard.   
59	Mr Richardson highlighted that while Unit 2 has two areas of private open space, neither has the required area of 60m² with a minimum dimension of 5m. There is one area of 40m² to the front of the dwelling and accessed from the living room, with a minimum dimension of 5m. A second space, with an area of approximately 45m², is accessed by the laundry and garage and has a minimum dimension of only 4.7m. 
60	Mr O’Brien acknowledged the non-compliance with Standard B28, but submitted that the provision is acceptable because there is a good space with a northern orientation and a separate service area. He also pointed to the nearby reserve available for active recreation and invoked the objective of dwelling diversity.
61	I see no reason why a development should not achieve the varied Standard B28 requirement. Failure to provide the required private open space also means that the site layout lacks a sense of openness and space for plantings, consistent with the character sought in a Bush Suburban area. 
Are there any other issues?
62	A few other matters were raised in submissions. I propose to discuss them only briefly, as none are critical to my decision.  
63	Mr Richardson submitted that as the porch of Unit 2 is not visible and is enclosed, it fails to provide visibility and surveillance of the shared accessway and is thus contrary to ResCode Standard B12 (Safety objective).
64	I see that as a minor issue. I agree with Mr O‘Brien that the entry to Unit 2 does not need to be visible from the street. The proposed siting of the entry is a common arrangement for a multi-unit development with two or more dwellings in a tandem arrangement. The small solid wall on the east side of the porch would not compromise safety or the visibility of the dwelling.
65	Although the review site is not covered by a Special Building Overlay, the Council deems the land as flood prone. Mr Richardson advised that Council’s Drainage Engineer commented that the Unit 2 garage is not supported as it would act as an obstruction during peak rainfall events. 
66	That matter is not referred to in the grounds of refusal. Any concerns could be dealt with by the Council’s draft condition that requires plans to show ‘A suitable overland flow path for the entire site to the satisfaction of the Responsible Authority’. Mr Richardson advised that there would not need to be any significant changes to the built form.
67	If a permit had been issued, it could have included a requirement for tree protection measures regarding nearby trees on neighbouring properties.
Conclusion
68	For the reasons given above, the decision of the responsible authority is affirmed. No permit is granted.

Vicki Davies 
Member